CHROMALLOY AMERICAN CORPORATION, FEDERAL MALLEABLE DIVISION

OSHRC Docket No. 77-2788

Occupational Safety and Health Review Commission

July 17, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, U.S. Dept of Labor

Clifford B. Buelow, for the employer

OPINION:

ORDER

BY THE COMMISSION:

Respondent has petitioned the full Review Commission for interlocutory review of an order by Commission Judge Louis J. Rubin denying Respondent's motion to postpone a hearing pending disposition by the United States Supreme Court of Respondent's petition for writ of certiorari in a related matter. We hereby deny Respondent's petition for interlocutory review. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The parties were notified of denial of Respondent's petition for interlocutory review by a premiminary Order of the Commission dated June 21, 1979.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The writ of certiorari sought by Respondent in this case involves review of a Seventh Circuit decision n2 upholding the validity of an inspection warrant obtained by the Occupational Safety and Health Administration (OSHA) of the Department of Labor. In that respect, this case [*2] is similar to a number of cases that have been initiated contemporaneously in the courts and before the Commission in the aftermath of the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98. S.Ct. 1816 (1978) ["Barlow's"]. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Marshall v. Chromalloy American Corp., 589 F.2d 1335 (7th Cir. 1979).

n3 Respondent is seeking Supreme Court review of a circuit court decision affirming a district court order holding Respondent in contempt for refusing to comply with an OSHA inspection warrant. Respondent had argued that the warrant was invalid as a defense in the civil contempt proceeding. Since no inspection had taken place at the time the Secretary initiated the contempt action, no citation had yet been issued by the Secretary. See 29 U.S.C. 658(a). Without a citation, there could be no notice of contest by Respondent, therefore, Review Commission jurisdiction, which is triggered by the filing of the notice of contest, had not been invoked at the time of the district court action. See 29 U.S.C. 659.

In the more typical case to which these comments are directed, the employer challenges an inspection warrant after an inspection has taken place, a citation has been issued and a notice of contest has been filed. In those instances, Review Commission jurisdiction is considered to have been invoked.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Before the Supreme Court's decision in Barlow's, 29 U.S.C. 657(a) n4 purportedly authorized warrantless inspections by OSHA's compliance officers. Thus, when faced with a challenge to the validity of an inspection warrant in a pre-Barlow's case, the Commission was placed in a particularly difficult position. In order to pass upon a warrant's validity, the Commission, at least implicitly, would first have to pass upon the constitutionality of 29 U.S.C. 657(a) in order to arrive at a need for the warrant and, hence, a reason to address the issue.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 8(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, hereinafter "the Act."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

While the Commission is competent to address fourth amendment issues by applying constitutional principles to particular facts, n5 it has consistently recognized that it is without the authority to pass upon the fundamental constitutionality of its enabling legislation. Buckeye [*4] Industries, Inc. v. Secretary of Labor, 587 F.2d 231 (5th Cir. 1979); Robberson Steel Co., 78 OSAHRC 21/C14, 6 BNA OSHC 1430, 1978 CCH OSHD P22,604 (Nos. 76-4636 and 76-4637, 1978), appeal dismissed, No. 78-1350 (10th Cir., Oct. 30, 1978) [7 BNA OSHC 1052]. Accordingly, prior to the Supreme Court's Barlow's decision, the Commission, having no authority to rule upon the constitutionality of 29 U.S.C. 657(a), declined to address arguments based upon fourth amendment challenges to the validity of OSHA inspection warrants. See Robberson Steel Co., Id.; Electrocast Steel Foundry, Inc., 78 OSAHRC 34/B7, 6 BNA OSHC 1562, 1978 CCH OSHD P22,702 (No. 77-3170, 1978).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 On numerous occasions, parties have raised and the Review Commission has decided issues regarding the validity of inspections conducted pursuant to 8 of the Act. In deciding such matters, the Review Commission has ruled on several fourth amendment issues, including whether an employer or one who exercised control over a subject premises consented to an inspection, Western Waterproofing Co., Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD P20,805 (No. 1087, 1976), rev'd on other grounds, 560 F.2d 947 (8th cir. 1977); Walter C. Mehlenbacher, 78 OSAHRC 72/A2, 6 BNA OSHC 1927, 1978 CCH OSHD P22,985 (No. 15904, 1978); Hensel Optical Co., 77 OSAHRC 161/F11, 5 BNA OSHC 1772 (No. 76-1116, 1977); Tobacco River Lumber Co., 75 OSAHRC 52/A2, 3 BNA OSHC 1059, 1974-75 CCH OSHD P19,565 (No. 1694, 1975), whether the source of the alleged violation was in "plain" or "public" view, Environmental Utilities Corp., 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1977-78 CCH OSHD P21,709 (No. 5324, 1977); Minnotte Contracting & Erection Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 1369, 1978 CCH OSHD P22,551 (No. 15919, 1978), as well as whether evidence should be suppressed because of the manner and circumstances of an inspection conducted pursuant to 29 U.S.C. 657(a), (pre-Barlow's), Western Waterproofing Co., Inc., supra; Environmental Utilities Corp., supra; Tobacco River Lumber Co., supra.

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In its Barlow's decision, the Supreme Court held that safety and heath inspections conducted pursuant to 29 U.S.C. 657(a), unless consented to, must be conducted with a warrant in order to be constitutionally valid. 98 S.Ct. at 1827. The Barlow's decision, therefore, by deciding the threshold issue involving the constitutionality of the Act, enabled the Commission to decide questions concerning the validity of individual inspection warrants. n6 In other words, this intervening change in the law placed the Commission in a posture where it is now clearly competent to address the inspection warrant issues.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 In addition to deciding the constitutionality of 8(a) of the Act, the Supreme Court, in Barlow's, established the following guidelines for determining the validity of OSHA inspection warrants:

Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administration standards for conducting an . . . inspection are satisfied with respect to a particular [establishment]." (citation omitted)

98 S.Ct. 1824.

[*6]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Commission recognizes that finding itself in the position of reviewing a magistrate's determination with respect to the issuance of an inspection warrant is unusual and we accept this role reluctantly. To do otherwise, however, is to create a separate and collateral review mechanism through the federal courts that will operate either concurrently with or to the exclusion of the review procedure created by Congress in the Act. See 29 U.S.C. 651(3), 659, 660, and 661. Clearly, the Supreme Court in Barlow's could not have intended parties to litigate fully the inspection warrant issues in a separate federal court action either before the statutory review process is permitted to begin or concurrently with the statutory adjudication of the "merits" of the alleged safety and health violations. Such a result is without question contrary to one of the principle congressional purposes in creating the Review Commission, namely, timely adjudication. n7 This is especially so since both "routes" of review lead, in almost all instances, to the same United States Court of Appeals.

- - - - - - [*7] - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 See Subcommittee on Labor of the Committee on Labor and Public Welfare of the United States Senate, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, remarks of Senator Javits, at 462-3 (Comm. Print, 1971).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Commission's position in this matter is in accord with the approach taken by the First Circuit in In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979). In Quality Products, the First Circuit concluded that "in the vast majority of OSHA enforcement cases, the challenges to the warrant can be adequately considered in the statutory enforcement proceedings . . . ." 592 F.2d at 615. The Court arrived at this conclusion despite its reference to the Commission's pre-Barlow's decision in Electrocast, supra, where we declined to address the inspection warrant issue.

While the First Circuit avoided making a jurisdictional ruling, it held that the district court should have, in equity, refrained from deciding the employer's motion [*8] to suppress evidence obtained during a challenged OSHA inspection, since the employer had "an adequate opportunity to litigate its challenges to the warrant in the procedure established by Congress." 592 F.2d at 616.

Accordingly, in line with Quality Products, we are of the opinion that challenges to the validity of OSHA inspection warrants should be considered in the statutorily created review procedure.